Anchorage [2000] QBCCMCmr 189 (14 April 2000)

C G YOUNGREFERENCE: 0182-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14097
Name of Scheme:	Anchorage
Address of Scheme:	32-38 Riverview Parade SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Hans FRANKE and Coral Janette FRANKE, co-owners of Lot 19 (known as Unit 92),


C G YOUNGI hereby order that the application for an interim order to -

1. Immediately evict unauthorised trespassers, Glenzeil P/L, from Anchorage common property.

2. Demand immediate restoration of all “Anchorage” common property and amenities which were damaged by the adjoining property developers Glenzeil P/L as a result of unsafe building practices,

is dismissed.
2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0182-2000

“Anchorage” CMS 14097

The applicants, Hans and Coral Franke of Lot 19 (known as Unit 92), have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

3. Immediately evict unauthorised trespassers, Glenzeil P/L, from Anchorage common property.

4. Demand immediate restoration of all “Anchorage” common property and amenities which were damaged by the adjoining property developers Glenzeil P/L as a result of unsafe building practices.

5. Issue orders regarding compensation of those proprietors adversely affected.

The applicants have also applied for the following interim order of an adjudicator, quote –

Refer items 1 and 2 as above.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

In this instance the applicant has not sought interim relief, but rather that two of the final order being sought be the subject of an interim order. Additionally, the applicant states that the situation of the scoured out north-western corner of the scheme and the use of the common property for the parking of construction equipment machinery, has prevailed since late December 1999.





There is no aspect of urgency associated with this application that requires an interim order be made. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is refused.

In the circumstances, I am not satisfied that the applicant has established that either the nature or urgency of the circumstances warrant the making of an interim order. Accordingly, this application for an interim order is refused. However the state and use being made of the common property is at the very least an inconvenient one to the applicants and perhaps other occupiers. As a preliminary observation I would say that there are issues of health and safety, and perhaps property and liability insurance aspects, which the body corporate should have already considered and satisfied itself about. This is apart from its general duty to administer the common property reasonably and for the benefit of lot owners.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.2y